Recently, I read an interesting opinion by the District of Columbia Court of Appeals, Barrows v. United States, 15 A.3d 673 (D.C. 2011)(Download Barrows Opinion). In Barrows, the trial court, without an objection from the defendant, closed the courtroom during voir dire. On appeal, the defendant claimed that the closing of the courtroom violated his Sixth Amendment right to a public trial and that an unidentified spectator preserved this issue for appellate review. The defendant acknowledged that the trial transcript contained no actual spectator objection but asserted that such an objection could be inferred from the following remark from the judge which was recorded in the transcript: "Not okay?...Well, ma'am, it's kind of hard for you to stay while we do this...." The District of Columbia Court of Appeals found that this preservation argument could potentially be viable but concluded that "[e]ven assuming that there was such a spectator objection...[t]he (putative) spectator objection may not have been a rights-based or other legal objection." (Ultimately, however, the court found that the trial court's error in closing the courtroom was structural but also, oddly, harmless, a seemingly oxymoronic conclusion that I will address in a later post).

This opinion was the first thing that I thought about after reading the excellent new article, The Plea Jury, 85 Ind. L.J. 731 (2010), by Laura Appleman, a professor at the Willamette University College of Law. The Plea Jury addresses the assembly line justice being meted out in courtrooms across the country. The vast majority of criminal cases in this country are resolved by plea bargain and without any jury/community involvement. After the prosecutor and the defendant reach a plea bargain, the only back-end quality control occurs at the plea hearing, where the "judge ascertains that the plea is knowing, intelligent, and voluntary." Julie R. O'Sullivan, The Last Straw: The Department of Justice’s Privilege Waiver Policy and the Death of Adversarial Justice in Criminal Investigations of Corporations, 57 DEPAUL L. REV. 329, 361 (2008). This process has been described as a "a five-minute interview of the person, under Rule 11, getting a kind of half-hearted, scripted confession as part of the guilty plea process." Panel Discussion, The Expanding Prosecutorial Role from Trial Counsel to Investigator and Administrator, 26 FORDHAM URB. L.J. 679, 684 (1999). Professor Appleman's intriguing proposal is to seat a plea jury, "a lay panel of citizens would listen to the defendant's [plea] allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders."

In holding that a court can sentence a defendant only on facts found by the jury beyond a reasonable doubt or admitted by the defendant, the Blakely Court gave strong support to the idea that the community must have the final word on criminal punishment.

In Blakely, the Court explained that the community's role in the jury trial was a key reservation of the community's power in the structuring of our government: "Just as suffrage ensures the people's ultimate control in the legislative and executive branches, [a] jury trial is meant to ensure their control in the judiciary." By relying on the jury's function as the public's representative and as the primary provider of community-based punishment, the Blakely Court endorsed a collective understanding of the jury trial right.

Professor Appleman then asserts that this "community right to determine an offender's punishment...is closely intertwined with a philosophy of expressive, restorative retribution," which, as she argued in a previous article, "encompasses both the historical antecedents of the Sixth Amendment jury right and modern ideals of punishment."

And yet, as the plea bargain has come to rule the criminal justice roost, and the community, in the form of the jury, has been replaced by a judge rubber stamping plea deals, (1) the expressive value of community punishment has been lost; (2) the community has lost its traditional role as the arbiter of the blameworthiness of offenders; and (3) correspondingly, the community has lost its ability to repair and reconcile the harm done by one of its own. With a plea jury, however, these values are given new life:

First, although the full expressive aspects of a trial do not occur with the plea jury, there is still the offender's expiation of his crimes to a segment of the public. With use of the plea jury, the plea is no longer enacted only before a limited audience of the judge, the prosecutor, and the defendant. Second, requiring a plea jury to decide whether the offender's allocution is truthful and whether the sentence is appropriate satisfies the basic requirements of retributive justice, as it permits the injured community to impose punishment on its offenders. Finally, restorative justice also plays its part in the plea-jury process, since the participation of the lay public not only allows the community to impose punishment, but also allows the demonstration of mercy and forgiveness. If the community sees that the offender is truly remorseful for his actions, then it is more likely to accept a shorter sentence, as well as be more supportive of the offender's reintegration into the community after release from incarceration.

You May Ask Yourself, How Do I Work This?

So how, theoretically and practically, do we integrate the idea of the community-jury right generally, and the concept of the plea jury specifically, into the plea bargaining system? After all, "twentieth-century courts, until quite recently, have assigned the jury trial right almost exclusively to defendants...." Well, according to Professor Appleman,

The best example for how to share such a right comes from another aspect of criminal procedure: the peremptory challenge. The body of case law surrounding peremptory challenges initially addressed the prosecution's illegal dismissal of jurors due to race or ethnicity, but it gradually grew to include the illegal dismissal of jurors by either the defense or the prosecution, based on the right of the juror herself to serve. It is this kind of division of jury rights, based on the rights of the community itself, that I propose to apply to the guilty plea.

It is this section of the article (which goes into much more detail about Batson v. Kentucky and its progeny) that prompted me to think of Barrows. We allow a spectator to claim that the closing of a courtroom during voir dire violates the First Amendment, so why shouldn't we allow a spectator to contend that such closure also violates the defendant's (and the community's) Sixth Amendment right to a public trial? Similarly, if we recognize at the micro level that jurors have the right to serve, shouldn't we acknowledge at the macro level that the plea bargain is slowly killing the criminal jury and that a plea jury could bring it back to life?

So, how would the plea jury practically work?

In the standard guilty plea, a defendant allocutes to the particulars of his crime(s) before the court. Formally, this is the time when the court determines whether the defendant's conduct was intentional and actually constituted the charged offense, as well as whether the plea is knowing and voluntary. This is where the plea jury would come in. My plea-jury proposal is relatively straightforward. The defendant would directly give his plea to a special guilty-plea jury, under the supervision of the court. The guilty-plea jury would then make a three-part determination: (1) whether the facts stated fit the alleged crimes; (2) whether the plea was knowing and voluntary; (3) and whether the proposed sentence was appropriate.

Professor Appleman then fleshes out her proposal, and I will bullet point some of its key aspects here:

•it would serve more than once, for at least a month at a time;

•it would probably consist of twelve or fewer people;

•it would be comprised of people randomly selected from the community, with no peremptory or for-cause challenges to shape its ranks;

•there would be no requirement for unanimity; instead, a majority vote would suffice;

•instead of pleading guilty and explaining his offenses solely to the judge, the defendant would direct his plea and allocution to the plea jury; and

•the jury would then determine whether the facts admitted by the defendant match the original charges; whether the plea was knowing, willing, and voluntary; and whether the proffered sentence was appropriate.

If You Were In The Public Eye

Professor Appleman then closes by listing some of the benefits and burdens that the creation of the plea jury would impose on the criminal justice system. She begins by explaining how the plea jury restores some of the criminal justice values lost by sacrificing the public jury trial at the altar of the efficient, but also informal and private, plea bargain. Again, I will bullet point some of her main arguments:

•a plea jury reintroduces the community back into the most common form of criminal adjudication, thereby satisfying the constitutional and theoretical dictates of both Article III and the Sixth Amendment;

•the current guilty-plea process functions out of sight from the average citizen and can create "disappointment and a sense of helplessness" in the public mind; conversely, by seeing how the plea jury weighs a defendant's guilty plea and proposed sentence, and by participating themselves in the process, the community will come to understand that criminal justice is an open, accessible proceeding;

•a plea jury lends transparency to the system, adds a spoonful of fairness to help the assembly line efficiency of plea bargaining go down, and allows the community to express social norms;

•the plea jury's role in allocution helps fulfill the need for restorative justice as the offender literally pleads to the community itself, acknowledging her wrongs and asking for mercy and reconciliation; and

•a plea jury revives deliberative democracy because jury service is the primary way that this country incorporates its citizens into the legal process.

Of course, Professor Appleman acknowledges that there are drawbacks to a plea jury system:

•it is likely that the speed at which indictments transform into guilty pleas would slow down with the incorporation of a plea jury, and integrating the community into the guilty-plea process may also lengthen the average time of a plea disposition, thus costing the states and federal government money;

•plea jurors would lack knowledge of typical police practices and charging decisions and might lack the ability to assess the validity of plea agreements;

•plea juries could lead to serious inconsistencies between similar defendants;

•plea juries protect the public interest but could also potentially infringe upon the rights of the defendant, or result in competing definitions of rights;

•a plea jury might not be consistent with some definitions of community and could lead to community fragmentation; and

•a plea jury would lead to penal populism, which is greatly unpopular in some quarters.

Conclusion

I think that Professor Appleman does a very nice job of explaining away some of these negatives and even turning some into positives (e.g., slowing down the plea bargaining process is costly, but it also puts the brakes on a plea bargaining system that has come to resemble The Candy Wrapping Job episode of "I Love Lucy.") I strong recommend that readers check out the entire article for Professor Appleman's full explication of the idea of a plea jury and her weighing of its pros and cons.

What led me to Professor Appleman's piece was my own forthcoming article, which argues that judges should be allowed to participate in plea negotiations. My article was prompted by many of the same concerns with the current plea bargaining system that led to Professor Appleman's proposal, and, after reading her article, I think that I might actually prefer her approach over mine. Involving a judge in a plea negotiation might lead to a fairer plea bargain, and I think that it might lead to the defendant acknowledging the harm that he caused rather than playing a game of Let's Make a Deal. But it does not involve the community. It does not revive the idea of trial by jury. It is still very much a closed system, without public input or output. A plea jury accomplishes all of these goals, and, if adopted could fundamentally change the way that we look at criminal justice in this country.

I asked Professor Appleman what led her to write the article, and she responded,

To briefly answer your question, I guess I was inspired to write the piece by the realization that all of the judicial and scholarly focus on the jury (including my own) wasn't that useful or applicable in a criminal justice system that disposed of 98% of its indictments by plea. Thus, to give real meaning to the jury trial right, we need to incorporate it into guilty pleas. The Plea Jury was the result.

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Comments

Professor
While not curing all the ills you and Professor Appleman speak of, consider 10 USC 845 which is the military plea process. Alford pleas are not accepted. The judge actually advises the accused of the elements of the offense of which he is pleading guilty to, explains those elements as a judge would to a jury, and questions the accused in some detail about the offense to ensure that the accused admits all of the elements of the offense and believes he is in fact guilty. In addition, the sentencing authority (judge or jury) renders a sentence before the quantum portion of the pretrial agreement is revealed. The accused then gets the benefit of whichever sentence is less.